Arinaitwe v Uganda (Criminal Appeal 21 of 2016) [2019] UGSC 78 (29 August 2019)

### THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

### CRIMINAL APPEAL NO 021 OF 2016

# (CORAM: ARACH-AMOKO, MWONDHA, BUTEERA, JJSC; NSHIMYE, TUMWESIGYE, AG. JSC)

#### **BETWEEN**

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# ARINAITWE AMON::::::::::::::::::::::::::::::::::::

#### AND

# UGANDA:::::::::::::::::::::::::::::::::::

[Appeal from the decision of the Court of Appeal of Uganda at Kampala in Criminal Appeal No 281 of 2010 presided by Geoffrey Kiryabwire, Paul. K Mugamba and Catherine Bamugemeirere, JJA]

### JUDGMENT OF THE COURT

#### **Background Facts**

This is a second appeal, brought against the Court of Appeal decision which upheld the Judgment of the High Court (Justice Ralph Ochan, J) sitting at Bushenyi, on the 28<sup>th</sup> October 2010. The appellant was charged with having murdered one Katahwire Erinekiro on the 21<sup>st</sup> day of April 2009 at Kakori village, Nyanga parish, Igara county in Bushenyi District. He was tried, convicted and was sentenced to 18 years imprisonment for the offence of murder contrary to section 188 and 189 of the Penal Code Act Cap.120. 35

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The deceased had been operating a bar. When he closed, the appellant who had been drinking in the bar followed him, assaulted and injured him critically. Whilst he was undergoing treatment, the deceased made a dying declaration and explained that he was attacked and injured by the appellant. He died from the injuries after making the statement.

The learned trial Judge relied on the dying declaration and other evidence to convict and sentence the appellant. Aggrieved by the decision of the trial court, the appellant appealed to the Court of Appeal against sentence only. The Court of 10 Appeal upheld the conviction and the sentence of 18 years imprisonment. It is upon that decision that the appellant appeals to this Court on the following one ground of appeal.

"The learned Justices of Appeal erred in law when they confirmed a 15 sentence of 18 years imprisonment, which sentence was illegal, harsh and manifestly excessive given the circumstances of the case"

#### **Presentation:**

Learned counsel, Mr. Andrew Sebugwao appeared for the appellant.

Ms. Babra Kawuma, Assistant Director of Public Prosecutions, appeared for the respondent.

# **Submissions for the appellant.**

Counsel for both parties filed written submissions which they adopted at the hearing of the appeal.

Counsel for the appellant submitted that the learned trial Judge did not deduct the 2 years that the appellant spent on remand although the Judge stated that he had considered the 2 years while passing the sentence.

According to counsel, the trial Judge stated "I sentence you to 18 years 10 imprisonment having taken away the 2 years you have been on remand." Counsel submitted that such a sentence was ambiguous and does not exactly demonstrate how the 2 years were deducted. Counsel contended that the sentence was contrary to and in contravention of Article 23(8) of the Constitution which makes it mandatory for the period spent on remand to be deducted from the 15 sentence of imprisonment that a Court passes on a convict.

Counsel contended that the sentence imposed does not conform with this Court's authority in the case of Rwabugande Moses versus Uganda Criminal Appeal

No.25 of 2014. 20

Counsel submitted further that the learned Justices of Appeal also did not consider all the mitigating factors. That the facts that the appellant was a first offender with no previous criminal record and of a state of mind that was partially impaired were not considered.

He contended that the sentence of 18 years was harsh and excessive and this Court should allow this appeal and reduce the sentence.

### Submissions for the respondent.

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Counsel for the respondent supported the conviction and sentence imposed by the High Court which was confirmed by the Court of Appeal.

Counsel submitted that the sentence of 18 years imprisonment to which the appellant was sentenced was legal and was neither harsh nor excessive. Counsel submitted that the lower Courts had considered all the mitigating and all the aggravating factors that were raised by both the prosecution and defence.

Counsel contended further that the Court of Appeal was justified when they upheld the conviction and sentence imposed by the trial Court.

Counsel submitted further that the appellant had committed murder which is an offence that carries a maximum sentence of death and in this case he was sentenced to 18 years imprisonment which was a lenient sentence.

#### 20 **The decision of the Court.**

Counsel for the appellant contended that the period the appellant spent on remand was not deducted from the 18 years sentence of imprisonment and was contrary to the law. We have perused both Judgments of the High Court and Court of Appeal in respect of the sentence imposed on the appellant.

While sentencing the appellant the trial Judge stated:-

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"Mzee Erineriko Katahwire met his death at the hands of the convict under circumstances that defies all rational explanation. A senseless act of wanton violence against an elderly citizen, husband and father. I sentence you to 18 years imprisonment having taken away the 2 years you had been on remand."

The appellant appealed against the sentence of the Court of Appeal which upheld the sentence. We find that the contention by counsel for the appellant that the period spent on remand was not deducted is not justified.

It is clear that the trial Judge imposed 18 years after "taking away 2 years" the appellant had spent on remand. "Taking away 2 years" and deducting 2 years mean the same thing in ordinary English language. We find that the trial Judge considered the period spent on remand and removed it from the period he intended to award. He ended up with 18 years to which he sentenced the appellant.

Counsel for the appellant contended that the sentence imposed by the trial and confirmed by the Court of Appeal did not conform to this Court's authority in the

case of Rwabuganda Moses versus Uganda (supra). 20

We find the contention without merit. In the first place, as stated above, we find that the period the appellant spent on remand was deducted from the period to which he was sentenced.

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Secondly, the High Court sentence the appellant on 28/10/2010. The Court of Appeal confirmed the sentence on $21/10/2016$ .

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In Criminal Appeal No.66 of 2016 Abelle Asuman versus Uganda, this Court held:

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"The case of Rwabuganda (supra) would not bind Courts for cases decided before the 31<sup>st</sup> of March 2017."

This case falls in the category of cases decided before that date. The sentence was not in contravention of Article 23(8) of the Constitution.

The appellant appealed against the sentence to the Court of Appeal. The Court of Appeal considered the sentence imposed by the trial Judge. The Court held: 10

> "We find no reason to disturb the sentence. Having reconsidered both the mitigating and aggravating factors, and taking stock of all the circumstances of the case, we conclude that a sentence of 18 years' imprisonment was not harsh. We hereby uphold the same."

This Court has in various cases held;-

"A trial Court has discretion which it exercises when awarding sentence. It is now settled that an appellate court would not interfere with the exercise of that discretion unless there was a failure to exercise discretion or failure to take into account a material consideration or an error in principle was made."

See Kyalimpa Edward vs Uganda Supreme Court Criminal Appeal No.10 of 25 1995, Kamya Johnson Wavamuno vs. Uganda, Criminal Appeal No.16 of 2002.

We find no reason to interfere with the sentence imposed by the High Court as confirmed by the Court of Appeal. For those reasons we dismiss the appeal. We uphold the sentence of 18 years that was imposed against the appellant. $29th$ Dated in Kampala........ $\dots$ day of $\dots$ ..2019.

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Hon. Justice S. Arach-Amoko JUSTICE OF THE SUPREME COURT

Thured

Hon. Justice F. Mwondha 15 JUSTICE OF THE SUPREME COURT

Hon. Justice R. Buteera JUSTICE OF THE SUPREME COURT

Hon. Justice A. S. Nshimye AG. JUSTICE F THE SUPREME COURT

Hon. Justice J. Tumwesigye AG. JUSTICE OF THE SUPREME COURT